Birthers & Indiana
“Most Americans believe that what the Framers set forth in our Constitution means what it says...”
From the Indiana Court:
The Wong Kim Ark Court explained:
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called ‘ligealty’, ‘obedience’, ‘faith’, or ‘power-of the king’. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual, - as expressed in the maxim, “Protectio trahit subjectionem, et subjectio protectionem”, - and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.
This fundamental principle, with these qualifications or explanations of it, was clearly, though quaintly, stated in the leading case known as ‘Calvins Case’, or the ‘Case of the Postnati’, decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere.
They then give a half dozen citation, one of which they quote:
“Lord Chief Justice Cockburn . . . said: “By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.” Cockb. Nat. 7.”
These were part of common law at the time the Constitution was passed, and thus part of knowing what was meant.
The Indiana Court goes on:
“It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.13”
http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf
Now, if you want to know why birthers get their butts handed to them in Court, the Court goes on to explain:
“The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs’ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.”
In other words, you cannot build a court case out of random writings. You need to look at the law in effect at the time, and as decided in court cases during the tears since.
You’ve sidestepped my point entirely.
Most of us “birthers” are past arguing case law at this point. After nearly two years of discussing this issue and turning over every conceivable argument and fact, the consensus conclusion is that the Framers intended that all American presidents should be born to the soil and the blood of this country.
Period. End of story.
They drew their inspiration for this constitutional requirement from Vattel’s “Law of Nations” and other sources. John Jay, the first Chief Justice of the Supreme Court was instrumental in ensuring that language which restricted the office of president to “Natural Born Citizens” was included in the US Constitution.
Argue court rulings, amendments to the Constitution, or statute law all you want, but this community has been through all of that for nearly two years now, and has fairly well risen above all of the minutiae of the issue.
What’s more important in the larger scope of things, is the common-sense understanding of what condition of allegiance our Commander in Chief should have, and that is without question, one who is born to the soil and the blood of this nation.
The Framers understood the importance of this, and so do we. It’s why most of us now demand that Obama prove that he meets this criterion, or relinquish the office.
First, Wong Kim Ark v. United States ONLY declared that Ark was a citizen.
Second, it is abundantly clear in Ark that Justice Gray was promoting HIS interpretation of "natural born citizen", as he found from English Common Law - to the extent that he bastardized, exagerated, and even flat out lied about the citations. He obviously felt that Ark WAS natural born, but lacked the votes to get that opinion - so he settled for citizen under the 14th Amendment.
NOW, lets see what Calvin's Case 1608, the seminal case on British subjectship, [cited in Ark] REALLY said:
"... 3. There be regulary (unlesse it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the king. 2. That the place of his birth be within the king’s dominion. And 3. the time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom, that was born under the ligeance of a king of another kingdom, albeit afterwards one kingdom descend to the king of the other ..."
Actual obedience meant permanent allegiance [or permanent ligeance], and not just temporary obedience due by aliens to the sovreign while they resided in the country.
Furthermore, [although cited, but trivialized in Ark], Dicey's "A Digest of the Law of England with Reference to the Conflict of Laws" stated:
(1) "British subject" means any person who owes permanent allegiance [See Note 1] to the Crown.
(2) "Natural-born British subject" means a British subject who has become a British subject at the moment of his birth.
(3) "Naturalized British subject" means any British subject who is not a natural-born British subject.
Note 1: "Permanent" allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes " temporary " allegiance to the Crown.
Additionally, Ark quoted Blackstone [which is a commentary on English Law - and NOT the law itself], but did NOT expound further on the following:
" ... The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such ...
Notice that Blackstone qualifies their status be writing "generally speaking". He does not state it to specifically exclude the children of aliens who are claimed as natural born subjects of their fathers' country, but he STRONGLY implies it further on by also stating that no subject can owe two [2] allegiances to two [2] different sovreigns.
NOW, your own words betray you ... "You need to look at the law in effect at the time, and as decided in court cases during the years since.
The Founding Fathers had been British subjects - and were, thus, brought up under British Law.
They were also aware of the British Nationality Act of 1730 [which governed British citizenship at the time of the American Revolution] that stated:
" ... the Children of all natural-born Subjects, born out of the Ligeance of her said late Majesty, her Heirs and Successors, should be deemed, adjudged and taken to be natural-born ... May it please your most Excellent Majesty that it may be declared and enacted, and be it declared and enacted by the Children of natural-born Subjects born out of the Allegiance of the Crown, declared to be natural-born ... That all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act, be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever ..."
Furthermore, there is John Jay's letter to George Washington in 1787, stating:
"... Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen ..."
There was NOT MUCH “American Statute Law” in place at the time. When the separation from Great Britain was complete, ALMOST ALL of the law used in the United States was British Law [except that which we disagreed with].
The lawyers amongst the Founding Fathers were trained either at English Law Schools, American Universities [which taught English Law], or studied under established attornies [who, themselves, were trained at English or American Universities that taught English Law].
Therefore, a "natural born citizen" is born within the dominion of the United States and owes a single, permanent allegiance to the United States at the moment of his birth. That single, permanent allegiance is conveyed through the parents. The only way the parents could convey such allegince was for them to be citizens [natural born or naturalized] themselves.
Since the British Nationality Act of 1730 [and subsequent British Nationality Act of 1948] conferred natural born subject status upon children born outside of the British dominion - there IS NO WAY the Founding Fathers would consider Obama to be natural born - citizen, yes ... natural born, no.
Given this, in tota, there is only one reasonable definition that the Founding Fathers intended and that is: A natural born citizen is born within the dominion of the United States AND of two [2] citizen parents, who each owe a single allegiance to the United States.
BTW: There is no SCOTUS case law that defines "natural born citizen". The fact that an Indiana Court did is moot - that court is subserviant to SCOTUS and SCOTUS has never ruled on it ...